uses and abuses of the past: an ethno-history of islamic

Uses and Abuses of the Past: An Ethno-Historyof Islamic Legal Texts

Mahmood Kooria*A B S T R A C T

The past is the most important element in the meanings of Islam and its law, but theexisting literature has rarely addressed the ways in which Muslims make sense of theirpast. How and why does the past matter so much for Muslims? Within their past, is itthe seventh century that matters for them the most, once it comes to Islamic law, or isit some later period? If the latter, why is that so? This article addresses these questionsthrough an ethno-historical study on the Sh�afiiı Muslims of the Indian Ocean littoral.I argue that a textual longue-duree of Islamic law is what matters to the Muslims morethan the scriptures from seventh-century Arabia, or even than the foundational texts ofIslamic law from the eighth or ninth centuries. This textual longue-duree is a productof millennium-long legalistic engagements by Muslims not only from Arabia, but alsofrom ‘peripheral’ places like India and Indonesia. Through juridical and ethical dis-courses and debates in religious spheres, a rich reservoir of premodern texts is con-stantly invoked in the mosques, madrasas, markets, and mass media in order to bettersustain religious piety and the legal system.

1 . I N T R O D U C T I O N‘Live as a European not as a 7th century savage’ wrote one reader in response to theSwiss court’s ruling that Muslim girls should swim with boys in the mixed schoolswimming lessons. ‘Good ruling’, wrote another reader: ‘If Muslims don’t like west-ern democracies who believe male and females are equals, . . . then they should stayin their 7th century countries.’1 These are not just spectacular comments; rather theyecho a wider popular sentiment often expressed in headlines related to Muslims.Even a PowerPoint presentation by the Federal Bureau of Investigation’s (FBI) Law

* School of Middle Eastern Studies, Leiden University, Room No. 0.09b, Matthias de Vrieshof 4, 2311 BZLeiden, The Netherlands. Tel (Mob.): þ31 644943699, (Office): þ31 715277698; Email: [email protected], [email protected] am grateful to Omar Anchassi (Exeter), Nijmi Edres (Gottingen), Eirik Hovden (Bergen), ShafeekHudawi (Singapore), three anonymous reviewers of the The Journal of Law and Religion, two of the OxfordJournal of Law and Religion for their insightful comments on earlier versions of this article. I am also thank-ful to several interlocutors who appear in the following pages for their time and conversations, as well as tothe HERA-funded project “Understanding Sharia: Past Perfect, Present Imperfect” and the ErasmusMundus Program for supporting this research financially.

1 For the news and comments, see <http://www.independent.co.uk/news/world/europe/switzerland-muslim-swimming-pool-school-mixed-lessons-ruling-girls-boys-echr-a7518981.html> accessed 07 July 2017.

VC The Author(s) 2018. Published by Oxford University Press. All rights reserved.For permissions, please email: [email protected]

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Enforcement Communication Unit describes Islam as a religion that ‘transforms [a]country’s culture into 7th-century Arabian ways’.2

More striking than the contexts of these statements is the power of their slogans. Itemphasizes the notion that the Muslims live following the seventh-century rules in social,cultural, legal, ethical, and economic realms. There is a common pattern in this insinu-ation. The trope of the seventh-century comes with regard to Islam and Muslims in dis-cussions about law, as in the comments on a court verdict and as in the address of theFBI presenter to a law enforcement team. In a similar vein, the Somali-born Dutch-American author Ayan Hirsi Ali writes in her recent book, in a chapter grippingly titled‘Shackled by Sharia: How Islam’s Harsh Religious Code Keeps Muslims Stuck in theSeventh Century’: ‘We must demand that Muslim citizens abjure sharia practices andpunishments that conflict with fundamental human rights and Western legal codes.Moreover, under no circumstances should Western countries allow Muslims to form self-governing enclaves in which women and other supposedly second-class citizens can betreated in ways that belong in the seventh century.’3

The metonymy of the seventh-century and Sharia serves as a recurrent rebuke forMuslims being non-compatible with the laws of the twenty-first century. The major-ity of Muslims would disagree with these statements as much as with the whole ideaof going back to the seventh century. They all want to live as everyone else, yet fol-lowing the prescriptions of Islam as much as possible. Indeed, it is true that theseventh-century followers of the Prophet Muhammad present an ideal Islamic com-munity for them. But their entanglements with Islam and Sharia have expanded eversince so enormously and have complemented it with a rich scholarly and juridicaltradition that sought creative ways to adapt Islamic teachings to their respective pla-ces and periods. This process of making sense of Islam in their immediate contextshas produced a rich textual tradition that confronted, negotiated, and rearticulatedthe understanding of Islam in Arabia in the seventh or eighth centuries. Particularlyin Islamic law, hundreds of new texts have been produced with this target in mind,often criticizing the early foundational scriptures. Thus, in the course of Islamic his-tory it was not the prescriptions of Quran and Hadiths that mattered most but ratherthe scholarly extractions from them of meanings adaptable to particular contextswhich made more sense to the community at large. The scholars who did this wereoften communicating, compromising, encountering, renewing and rejecting the viewsof earlier scholars, their texts and their judgements. All these engagements happenedamong Sunni Muslims mostly standing within the theoretical frameworks of a par-ticular legal school, predominantly H: anafısm, Sh�afiiısm, M�alikısm, and H: anbalısm.These schools produced a rich tradition of Islamic scholarly and textual genealogies,in which scholars wrote comments on previous texts, which were based on evenearlier texts, and those in turn on texts going back to the eighth or ninth century.They were presented in the form of commentaries, super-commentaries, super-super-commentaries, abridgements, translations, and poetic versions and this large

2 Spencer Ackerman, ‘FBI “Islam 101” Guide Depicted Muslims as 7th-Century Simpletons’ <https://www.wired.com/2011/07/fbi-islam-101-guide/>; for the original document, see <https://www.wired.com/images_blogs/dangerroom/2011/07/Cultural-Interviewing-Interrogation-PowerPoint1.pdf> both linksaccessed 07 July 2017.

3 Ayaan Hirsi Ali, Heretic: Why Islam Needs a Reformation Now (Harper Collins Publishers 2015) 152.

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corpus of texts is what matters to the Muslims in the contemporary world, morethan the original scriptures of the Quran or Hadith from the seventh century.4 Thisarticle explores the uses of these texts by Muslims in their everyday lives in order tounderstand how they find meanings in them and justifications from them in theworld of Islam in the Middle East, South and Southeast Asia, and East Africa, or inthe Indian Ocean littoral that binds these regions and their communities togetherhistorically and culturally.

Before discussing this we shall consider a related theoretical-cum-theological issuewith regard to Muslims and the seventh century. While all the above Islamophobiccomments were trying to attach the Muslims with the seventh century, an argumentto which the majority of Muslims would disagree, there is a section in the commu-nity that does want to go back to the seventh century by negating the rich scholarlyand intellectual tradition of Islam. In Islamic circles they are known as Salafıs orWahhabis, but more widely they are known as ‘Reformists’, in line with the Christianreformers who made similar claims to reject the intermediary canonical traditions ofCatholicism. A strong section among them argues that the Muslims should go backto the seventh century in all realms of their life, not only in religious rituals but alsoin everyday lifestyle and cultures. They argued that the original form of Islam lay inseventh century ideals and frameworks, and the legal schools followed by the major-ity of Muslims should be rejected. Rashıd Ri :d�a, one of the most renowned Salafithinkers of the twentieth century, identified himself with Salafism and its inherent re-jection of this long tradition thus: ‘I am a Salafi Muslim; I do not blindly follow anyparticular religious scholar and am not a partisan of any particular mujtahid.’5 Suchpeople are particularly obsessed with the earliest scriptures of Islam written in orascribed to the seventh century, whereas most Muslims follow later juridical tradi-tions beginning in the ninth and stretching to the twentieth century.6 That long andrich past of more than a millennium stands as an opulent repository for Muslimscholarly engagements in their meaning-making process of what are Islam and its lawfor their present lifestyle.

The anthropologist Talal Asad has conceptualized this process of dealing with thepast through scholarly discourses as the Islamic discursive tradition. It ‘includes andrelates itself to the founding texts of the Qur’an and the Hadith’ and ‘is simply a trad-ition of Muslim discourse that addresses itself to conceptions of the Islamic past andfuture, with reference to a particular practice in the past’. He says that the history ofa given practice necessitates an Islamic scholar to instruct its ‘correct form and pur-pose’. It calls for discourses which are unequivocally related:

4 To give just an example, consider part of this answer from Hamza Yusuf, an American Islamic scholar, to aquestion on how one should understand Quran and what should be one’s personal relationship with it:‘One thing that you have to completely set aside is that you cannot get rulings from the Quran. It is abso-lutely haram to use the Quran as a book of fiqh (law), unless you are a mujtahid. You have to learn thefiqh from fuqah�a (jurists). And that is very important.’ <https://www.facebook.com/ZaytunaCollege/videos/10155424786124253/> accessed 07 July 2017.

5 Henri Lauziere, The Making of Salafism: Islamic Reform in the Twentieth Century, 96.6 On the broader and deeper histories of Salafi engagements with Islamic textual corpus, see Roel Meijer

(ed), Global Salafism: Islam’s New Religious Movement (Hurst 2009); Jonathan Brown, The CanonizationOf Al Bukh�arı And Muslim: The Formation and Function of the Sunni Hadith Canon (Brill 2007) 300–34.

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conceptually to a past (when the practice was instituted, and from which theknowledge of its point and proper performance has been transmitted), and afuture (how the point of that practice can best be secured in the short or longterm, or why it should be modified or abandoned) through a present (how it islinked to other practices, institutions and social conditions).

Accordingly, a practice becomes Islamic ‘because it is authorised by the discursivetraditions of Islam, and so is taught to Muslims’ and therefore ‘orthodoxy is crucialto all Muslim traditions’.7

But recently Shahab Ahmed in a posthumous book has called this conceptualiza-tion problematic as it stands closer to a Salafi line of thought which adheres to theidea that ‘the original is the authentic’ and axiomatically claims that ‘true and authen-tic Islam is to be identified by distinguishing it from the human and historical accre-tions of Islamic culture and society’. He writes about Asad’s thesis:

. . . what he is effectively doing is calling for us to identify as the relevant andconstitutive discursive tradition/Islam those texts and practices by which thepractitioners of the discursive tradition engage with scripture to prescribe (orto resist) orthodoxy. By this criterion, those texts and practices whose engage-ment with Divine Revelation is not bound up in a dynamic of orthodoxy be-come ipso facto something less than ‘proper Muslim action’ . . . even whenthose texts and practices, as a matter of historical fact, were absolutely centralto ‘the formation of moral selves, the manipulation of populations (or resist-ance to it), the production of appropriate knowledges’.8

Ironically, Robert Gleave, a historian of Islamic law, identifies Ahmed’s book as awhole as a product of Wahhabism/Salafism:

I do not think he could have written this book without Wahhabism. I thinkWahhabism inspired him to write this book . . . . By admitting the paradox inthe six things at the beginning of the book, he has bought the Wahhabi argu-ment that these are paradoxical . . . whereas in the premodern period you donot find these as paradoxes. You do not find people obsessing in the same way.You have an acceptance of diversity which he recognises in the book, but hispromotion of these paradoxes is a modern [Wahhabi] promotion.9

The past is thus is a hotbed for Islam, Islamists, Islamicists, and Islamophobes whichcircumscribe the seventh century, particularly once it comes to Sharia. The ways inwhich Muslims in contemporary world have developed their sense of their past is

7 Talal Asad, The Idea of an Anthropology of Islam (Center for Contemporary Arab Studies GeorgetownUniversity 1986) 14–15.

8 Shahab Ahmed, What is Islam? The Importance of Being Islamic (Princeton University Press 2015) 290,171, 82.

9 Robert Gleave, ‘On the Importance of Being Islamic: Shahab Ahmed’s What is Islam? and the Future ofIslamic Studies’ paper presented at the workshop, Queen Mary University of London, <https://www.youtube.com/watch?v¼4g0kwx5awuw> accessed 07 July 2017.


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crushed and overlooked. In all these suggestions we see that the past is the most im-portant element once it comes to the meanings of Islam. Then we are left with thequestion if the past matters that much for Muslims as has so widely been invoked.If yes, is it the seventh century that matters or later periods? If no, why is it so? I ad-dress these questions in this article, not through the lens of Salafıs (whom the aboveFBI presentation compartmentalises as the ‘least tolerant’ Islamic school of thought,just before the Salafı jihadıs), but through the lens of the Sh�afiiı Muslims (whom itcategorises as the ‘most tolerant’). I explore how the contemporary Muslims fromthe Indian Ocean littoral engage with their past and how their rich repository ofIslamic textual scholarship lives among them. I argue that a textual longue-duree ofIslamic law is what matters to the Muslims and not the scriptures from the seventhcentury, not even the early texts of Islamic law, but texts from five centuries or evena millennium after the rise of Islam. Some of those were written not in Arabia, but in‘peripheral’ places like India and Indonesia.

For a better comprehension I take three important Sh�afiiı texts, all written in thepremodern period, and I explore their contemporary uses among the Sh�afiiı Muslimsin discussions, polemics, debates, and classrooms in their meaning-making processesof their religious existences, identities, and pieties. As any other religious scripture,these texts have been used, abused, and misused by religious scholars, intellectuals,popular writers, translators, entrepreneurs, and critics in a number of different legalengagements of scholarship, teaching, discussing, debating, lawgiving, and writing. Ifocus on the status of these texts in social, religious, economic, cultural, and educa-tional spheres through a historical-anthropological perspective in order to observethe transformations in the textual longue-duree of Islamic law. The three texts infocus are Minh�aj al-t:�alibın of Yah: y�a al-Nawawı (d. 1277), its commentary Tuh: fat al-muh: t�aj of Ibn H: ajar al-Haytamı (d. 1561) and its indirect summary Fath: al-muiın ofZayn al-Dın al-Malayb�arı (d. 1583?).

During four to seven centuries after they were written, these texts have been play-ing crucial roles in different modes of legalist initiatives among the Sh�afiiı and non-Sh�afiiı Muslims and non-Muslims. As the three sources on which the school highlydepended and the most important reference points for its followers, those texts havetravelled across the worlds of the Indian Ocean and the eastern Mediterranean untilthe twentieth century. An ethno-historical exploration helps us understand theirwide currency among coastal Muslims from South and East Africa to the MiddleEast and South and Southeast Asia. Historically, Sh�afiiısm dominated among theMuslims of such distant places from Africa to Asia through networks of Sh�afiiı schol-ars, jurists, and traders who utilized the affluent maritime routes of the Indian Oceanworld in the thirteenth to nineteenth centuries. Although the school was only oneamong several other Sunni and Shıiı schools followed in the littoral, the unprece-dented conversions along with extensive migrations of Sh�afiiı scholars from the six-teenth century contributed to the dominance of this legal stream. A vigorouscirculation of legal ideas and texts along with the scholars of the school provided ashared vocabulary for the ‘Indian Ocean Muslims’, and the three texts were and areused in all these regions in varying levels.

Here I shed some light on the idiosyncratic aspects these texts acquired, com-pared to other texts within and outside the Sh�afiiı school. They formed a rich archive


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with which Muslims could engage. I investigate the ways of teaching, learning, mem-orizing, discussing, debating, and rejecting those texts, in order to unravel their statusin the present-day Sh�afiiı and non-Sh�afiiı communities. This raises a number of inter-connected questions. In the three, is there a hierarchy of usage varying from regionto region within the Sh�afiiı world? If yes, how and why? What are the discursive, reli-gious and cultural practices affiliated with the ‘survival’ of these premodern texts?Above all, how would these contemporary practices enlighten us on the ways inwhich the Muslims negotiate, encounter, reject and accept their past in the everydaylife?

To answer these questions, I depend on multi-cited ethnographical fieldworks Iconducted at certain educational centres and legalistic cultures of South Asia (mainlyat Malabar and Madras) and Southeast Asia (Jakarta, Aceh and Singapore), and ondigital archival materials and secondary literature from and on the Middle East andEast Africa. In religious educational centres I have conducted ethno-historical sur-veys, and traced the dissemination of their records through new media. First I intro-duce the historical roots and routes of these texts with a brief overview of theircomposition and dissemination in the Muslim world. I then describe their contem-porary uses by looking into pedagogic functions, both in traditional institutions and‘non-institutional’ settings, and various other spheres of influence, the personal andcollective, organisational, and sectarian realms of the Sh�afiiı Muslims.

2 . R O O T S A N D R O U T E S O F A R E P O S I T O R Y : T H E S H �AF I iI T E X T SIn the history of the Sh�afiiı school of Islamic law, the most foundational text is al-Umm, written by the eponymous founder of the school Muh: ammad bin Idrıs al-Sh�afiiı (d. 820). The title al-Umm literally means ‘the mother’, and indeed it standsas the supreme ancestral mother for future genealogies of texts that the school wouldproduce in the centuries to follow.10 Two immediate children were its two abridge-ments, written by Sh�afiiı’s students, Ism�aiıl Yah: y�a al-Muzanı (d. 878) and Ab�uYaiq�ub al-Buwayt: ı (d. 846). Although the abridgement of the latter was initiallyappreciated by the early followers of the school, it soon became outdated for its greatemphasis on the h: adıths, its apparent disordered structure and the emergence of theH: anbalı school.11 Muzanı’s summary took its place and it was widely circulatedamong the Sh�afiiı scholars in the ninth to the eleventh centuries. It thus attractedseveral commentaries, super-commentaries, and summaries among which the mostelaborate one was Nih�ayat al-mat: lab written by iAbd al-Malik bin iAbd All�ah al-Juwaynı (d. 1085), a Persian scholar based in Khurasan. His student Ab�u H: �amid al-Ghaz�alı (d. 1111), one of the most celebrated scholars of Islamic history, wrote a

10 There is a long debate among the Islamic legal historians on the authenticity and authorship of the Ummand Sh�afiiı. The debate seems to have settled by the persuasive source-critical study of Ahmed El Shamsy,‘Al-Sh�afiiı’s Written Corpus: A Source-Critical Study’ (2012) 132(2) Journal of the American OrientalSociety 199–220. He concludes that the Umm as available today is an authentic text written by Sh�afiiıhimself ‘to the extent that a manuscript culture can reproduce a text authentically’. For earlier debates onthis, see Joseph Lowry, ‘The Legal Hermeneutics of al-Sh�afiiı and Ibn Qutayba: A Reconsideration’(2004) 11(1) Islamic Law and Society 1–41; Norman Calder, Studies in Early Muslim Jurisprudence(Clarendon Press 1993).

11 Ahmed El Shamsy, ‘The First Sh�afiiı: The Traditionalist Legal Thought of Ab�u Yaiq�ub al-Buwayt: ı(d. 231/846)’ (2007) 14(3) Islamic Law and Society 301–41.


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book called Basıt: which is said to have been a commentary of his teacher’s work.12

In the course of time, Ghaz�alı himself wrote a summary for the Basıt: titled Wasıt: ,which he then abridged as Wajız, and then again abridged as Khul�as: a. All these textsreceived several progenies as commentaries, super-commentaries, super-super-com-mentaries and/or summaries. Among them the most noticed one was Muh: arrar byAb�u al-Q�asim bin iAbd al-Karım R�afiiı (d. 1227), another Persian jurist and historianbased in the Caspian region.

The quality of the Muh: arrar became noticed not exclusively for itself but ratherfor its abridgement, the Minh�aj al-t:�alibın (hereafter Minh�aj) of Yah: y�a bin Sharafal-Nawawı. Nawawı wrote the Minh�aj as he thought Muh: arrar’s several argumentsand rulings opposed the ‘authentic’ opinions in the school.13 He had synthesized along-standing split among the Sh�afiiı jurists between the Khurasani and Iraqi factionsand his Minh�aj encapsulated his lifetime-project of this synergy.14 The text attracteda huge appreciation among the literary circles and legal scholars for its language, pre-cision, erudition and approach. It canonized the school through its prioritization andstandardization of the school’s opinions seen across a vast corpus of texts writtenafter its supreme textual ancestress al-Umm. It revolutionized the ways in which theSh�afiiı law was interpreted, perceived, and transmitted among later Sh�afiiı jurists. Forthem its methodology and approach provided a modular framework to understandand advance the laws of Islam. Over several generations it became one of the mostcirculated texts in the Islamic world, with multiple commentaries, super-commentaries, abridgements, translations produced over the centuries and evennow. That is why this text has been chosen as the first to focus on, and the other twoare extensions of the Minh�aj.

In the fifteenth and sixteenth centuries there was an unprecedented surge in thecommentaries, and several scholars wrote more than one commentary. Out of thesetextual treasures belonging to the Minh�aj, I choose Tuh: fat al-muh: t�aj (hereafterTuh: fa) of Ibn H: ajar al-Haytamı (d. 1561), for it has been the most noted commen-tary used by the Sh�afiiı jurists and taken as the most advanced text in that school. Itsreception and circulation has to be seen alongside an opposing commentary; it iscalled Nih�ayat al-muh: t�aj and was written by Ibn H: ajar’s colleague in Cairo, Shamsal-Dın Muh: ammad al-Ramlı (d. 1596). The Tuh: fa was mostly circulated in theHijaz, Yemen, South and Southeast Asia, whereas the Nih�aya was used in Egypt andadjacent areas. By the eighteenth century this divided circulation changed with schol-ars becoming increasingly mobile.15 Yet the Tuh: fa remains a widely circulatedadvanced legal text in the Indian Ocean littoral. In the last four centuries it hasattracted about forty textual progenies as super-commentaries, summaries, abridge-ments, poetic versions, etc.

12 Sulaym�an ibn Muh: ammad Bujayrimı,_

H�ashiyat al-Bujayrimı i ja Sharh: Manhaj al-_tull�ab (D�ar al-Kutub al-

iIlmıyat 2000) 1, 15; H: abıb iAbd All�ah bin H: usayn Bil-Faqıh, Mat: lab al-ıq�a_z fı al-kal�am al�a shayj min

ghurar al-alf�a_z: bay�an li mu

_s_tala

_H�at al-Sh�afiiıyyat al-fiqhıyya (D�ar al-Muh�ajir 1995) 34.

13 Nawawı, Minh�aj al-t:�alibın wa iumdat al-muftın, ed Muh: ammad_T�ahir Shaib�an (Dar al-Minh�aj 2005) 64.

14 On the life and contribution of Nawawı, see Fachrizal Halim, Legal Authority in Premodern Islam: Yah: y�ab. Sharaf al-Nawawı in the Sh�afiiı School of Law (Routledge 2015).

15 Shif�aj Muh: ammad H: asan Hıt�u (ed), iUmar bin H: �amid B�a Faraj B�a iAlawı, Fath: al-ialı bi jami al-khil�afbayn Ibn H: ajar wa Ibn al-Ramlı, (D�ar al-Minh�aj 2010) 16–17.


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The third text I focus on is an indirect summary of the Tuh: fa entitled Fath: al-muiın (hereafter Fath: ) written by Zayn al-Dın al-Malayb�arı (d. 1583?). He was anIndian jurist and historian, who reportedly studied with Ibn H: ajar at Mecca. Thistext has also been circulated widely in the Indian Ocean littoral and has attracted sev-eral commentaries, translations, and poetic versions. In nineteenth-century Mecca itattracted four commentators, as many as it did later in South and Southeast Asia. Ithas often been mentioned in the Sh�afiiı scholarly circles as the standard text or con-stitution of the school.

The Minh�aj, the Tuh: fa, and the Fath: have all played crucial roles in differentmodes of legalistic formulations among Sh�afiiı Muslims, from the world of the east-ern Mediterranean to that of the eastern Indian Ocean. The intellectual networksfunctioning between South and Southeast Asia, the Middle East, and South and EastAfrica facilitated the mobility of these texts across regional borders, and the use ofArabic as a lingua franca for the scholars and traders of the Indian Ocean littoral inthe premodern centuries encouraged the circulation of texts.16 For Sh�afiiı texts inparticular there was a significant demand from the sixteenth century onward due tothe increasing predominance of the school among Swahilis, Malays, Malabaris,Maibarıs, Jawis, Hadramis, etc.17 These three texts thus catered for the appetite ofSh�afiiı Muslims over centuries and they became some of the texts on which theschool most depended, and also the most important reference points in the everydaylives and practices of the followers in these regions. Of course, there were manymore texts used among the Sh�afiiıs in this littoral and beyond, but transregionallythese interconnected texts stand out as having a wider reception and recognition.

How do these texts from the thirteenth and sixteenth centuries matter to theMuslims in the twenty-first century? Why and how do they stand as a reservoir fromwhich everyday Islam can process a meaning? To these questions I now turn.

3 . L E A R N I N G I S L A M I C L A W : T W O I N T E R M E D I A T E T E X T SAll across the Muslim world, there is a usual method to disseminate Islamic teachingsfrom a primary to an advanced level. Most Muslims receive a primary educationthrough formal or informal channels run by governmental or non-governmentalinstitutions. The texts and ideas that the students learn at these centres form theirshared vocabularies, and these become the repository for their religious, theological,and cultural dialogues at a regional or transregional level. Among the Sh�afiiı Muslimsof the Indian Ocean littoral in particular such a shared repository emerged from the

16 In the past decade, there have been quite some studies on these intellectual networks of scholars, traders,pilgrims operating between these regions. For example, see Gagan Sood, India and the Islamic Heartlands:An Eighteenth-Century World of Circulation and Exchange (Cambridge University Press 2016); GrazianoKratli and Ghislaine Lydon (eds), The Trans-Saharan Book Trade: Manuscript Culture, Arabic Literacy andIntellectual History in Muslim Africa (Brill 2011); Ronit Ricci, Islam Translated: Literature, Conversion, andthe Arabic Cosmopolis of South and Southeast Asia (University of Chicago Press 2011); R Michael Feenerand Terenjit Sevea (eds), Islamic Connections: Studies of South and Southeast Asia (Institute of SoutheastAsian Studies 2009); Azyumardi Azra, The Origins of Islamic Reformism in Southeast Asia: Networks ofMalay-Indonesian and Middle Eastern Ulama in the Seventeenth and Eighteenth Centuries (University ofHawai’i Press 2004).

17 Mahmood Kooria, ‘Cosmopolis of Law: Islamic Legal Ideas and Texts across the Indian Ocean andEastern Mediterranean Worlds’ (PhD diss, Leiden University, 2016).


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texts they studied or were introduced to them directly or indirectly at various stagesof their educational life. The Minh�aj, Tuh: fa, and Fath: are some of the most import-ant contributors to this repository, for they are still being taught and learnt amongSh�afiiı Muslims despite their premodern origins. Educational practices related tothese texts vary in the Sh�afiiı world according to institutional frameworks, individualpriorities, regional approaches to legal studies, and linguistic differences. Theseaspects influence modes of learning and teaching, approaches towards content, andhow those are accommodated to curricula. Many scholars have looked into differentnuances of the practices in Islamic learning across the Middle East, South andSoutheast Asia, and East and South Africa,18 although only a marginal connected an-thropology of Islamic legal education in the Indian Ocean world has emerged.19

I briefly address how different places and people approach the same texts in dis/simi-lar ways.

If we categorize the Minh�aj, Tuh: fa, and Fath: into three levels (introductory, inter-mediate, and advanced) of texts for learning Sh�afiiısm, the regions differ in ascribingwhich text to which division. Linguistic, individual, and spatial criteria determine thepedagogical choices. It certainly has to do with the institutional, traditional and non-traditional prioritisation that a teacher (and by extension, his/her collective) makesfor the horizontal, vertical, spatial and timely conveniences. Evolutions in Islamiceducational practices arising from various social, political, and economic backgroundsdetermine the contextual acceptance that these texts find in particular regions.

Related to this we have to refrain from thinking of ‘Islamic educational centres’ asa monolithic category, for they appear differently across the Indian Ocean world. InYemen we have mi’lamat at the primary level and rib�at: in the advanced level. InSouthern India the corresponding terms are pa

_l_li-dars and arabic-college, and the lat-

ter will admit students without having first been taught in the former. There is an-other type called madrasa which integrates primary and secondary education. InSoutheast Asia there are pesantrens, pondoks, dayah, ma’had and madrasa and there itis hard to distinguish them clearly because different regions use the same names fordifferent levels of education. In East and South Africa the madrasas and masjids arethe corresponding terms. In Egypt they are called kuttab and jami’at. All these termsare not just regional variations or translations of any particular Islamic educationalpractice or structure. Each name connotes different social, historical and religiousparticularities and situations. But to address each one with its local name would be

18 For example, see Robert Launay (ed), Islamic Education in Africa: Writing Boards and Blackboards(Indiana University Press 2016); Goolam Vahed and Thembisa Waetjen, Schooling Muslims in Natal:Identity, State, and the Orient Islamic Educational Institute (KwaZulu-Natal Press 2015); Eka Srimulyani,Women from Traditional Islamic Educational Institutions in Indonesia: Negotiating Public Spaces(Amsterdam University Press 2012); Roman Loimeier, Between Social Skills and Marketable Skills: ThePolitics of Islamic Education 20th century Zanzibar (Brill 2009); Shamil Jeppie, Language, Identity,Modernity: The Arabic Study Circle of Durban (HSRC Press 2007); Yoginder Sikand, Bastions of theBelievers: Madrasas and Islamic Education in India (Penguin 2005); Dhofier Zamakhsari, The PeasantrenTradition: The Role of the Kyai in the Maintenance of Traditional Islam in Java (Arizona State University1999).

19 Iza Hussin, The Politics of Islamic Law (Chicago University Press); Brinkley Messick, The CalligraphicState: Textual Domination and History in a Muslim Society (University of California Press 1993).


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confusing than clarifying. Instead I use the terms primary, secondary, higher, andadvanced.

At the primary level plenty of works are used for studying Islamic law. Theseworks provide a general understanding of basic rituals, rules, obligations, and prohibi-tions without going into the argumentative and discursive aspects of Sh�afiiısm as alegal school. They discuss mainly the iib�ad�at (rituals including prayers, fasting, alms-giving, and pilgrimage), a quarter of the usual Sh�afiiı/Islamic legal discourses. Whattextbooks are used at this level depends on regional institutions or individuals. Thetraditional texts found in South and Southeast Asia are Mutafarrid, Ark�an al-s: al�atand Safınat al-naj�at. All these texts are in Arabic, but the majority of students did notunderstand Arabic at that stage, so the main learning process involved understandingthe meaning and memorising the actual text. Some attempts have been made totranslate the books into vernacular languages together with additional commentaries.Some regions have printed their own textbooks and circulated them free of charge,or sold them in mass. Such initiatives, as well as the whole administration of primaryreligious education in the Indian Ocean rim, are managed either by state-funded edu-cational ventures (as in Indonesia, Malaysia, and Yemen), non-governmental organi-sations (the madrasas of Malabar are run by organisations like Samasta KeralaJamiiyyat al-iUlam�aj and All India Sunni Jamiiyyat al-iUlam�aj), or individual initia-tives (most pa

_l_li-darses, �ottupa

_l_lis, dayahs or pesantrens are run by individuals or

small committees).At the secondary level two texts come under our focus, the Minh�aj and the Fath: .

It is interesting how these two texts find themselves ‘in the same pot’ despite their le-galistic, intellectual, stylistic, historical and cultural differences. In Yemen, Egypt andSomalia, just after the Quran-school, the students start with the Minh�aj. They mem-orize the entire text, which is considered as one of the mah: f�u

_z�at, a text to be memo-

rized, and they may also do the same with the Mukhtas: ar of Ab�u Shuj�ai. BrinkleyMessick has expounded on how students went to the hazr once they graduated fromtheir primary education in Qurj�an schools (mi’lamat).20 At the same brilliant memo-rising of Qurj�an, they also memorized the most important legal texts, along with oneor two significant texts of grammar, theology, and hadith. Regarding the acceptanceand use of the Minh�aj in the Yemeni educational system in the nineteenth and twen-tieth centuries, he provides a detailed picture, one which portrays the text’s journeyacross the Sh�afiiı cosmopolis. It was often the first text that a student of Sh�afiiısmhad to study after the initial stage of memorizing the Qurj�an and many studentslearned it from their parents itself. This we see in the introductory words to a bio-graphical entry about a Yemeni scholar:

The learned scholar and man of letters, the bright and sagacious iAbd al-Rah: m�an, son of iAlı, son of N�ajı, al-H: add�ad, the Sh�afiiı, the Yemeni, the Ibbi,was born in the town of Ibb in the year 1293 [1876] and received instructionfrom his father, in Sh�afiiı jurisprudence [beginning with] Minh�aj.21

20 Messick, ibid chapter 4.21 Mu

_Hammad ibn Mu

_Hammad Zab�arah, Nuzhat al-na

_zar fı rij�al al-qarn al-r�abi‘ ‘ashar (Markaz al-Dir�as�at

wa-al-Ab_

H�ath al-Yamanıyah 1979) 347–48—cited in Messick, The Calligraphic State, 20.


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This practice continued up to the late twentieth century, as Messick’s ethnographicalexpositions demonstrate. He provides a detailed account of the process of memoriza-tion and its role in the pedagogical traditions of Islam and Yemen. Sh�afiiı studentsmostly learned the Minh�aj by heart together with the Mukhtas: ar of Ab�u Shuj�ai, al-though the latter was less central in many places in the course of time. Thus all overthe Indian Ocean rim Yemen’s educational realm stands out as the place where theMinh�aj enjoyed prominence for so long. Precisely because of this, we see many stu-dents from other parts of the rim coming to Yemen and studying the Minh�aj exclu-sively. In H: a :dramawt, iAbd al-Rah: m�an bin Muh: ammad bin H: usayn al-Mashh�ur (d.1902) taught al-Mughnı, Fath: al-Wahh�ab, and the Minh�aj, and many East Africanstudents such as the renowned iAbd All�ah B�a Kathır learned these texts with him.22

Only in H: a :dramawt do we notice the simultaneous presence of many specialists ofthe text. There were more than ten specialists at a time, and many students venturedto study the same text with most of them.23

It took more than a year to memorize the Minh�aj entirely. Once they have fin-ished memorizing often a celebration follows in the institute, home and village. InSomalia, the celebration involves a recitation ceremony. A video footage onlineshows the girls who had completed the Minh�aj reciting one part as a group to a largeaudience of parents, teachers and, the public. They recite the text one after anotherthrough a microphone as in a performative art. Wearing the traditional dress for fe-male scholars, one of them starts reciting one or two lines rhythmically, the wholegroup then immediately ‘sings’ along in chorus the following line. Meanwhile, shehands over the microphone to the next girl who follows in the same style andrhythm. This goes on until the whole group has recited portions of the text or ateacher interrupts. A distinguished guest is invited to this ceremony to honour andappreciate the students.24

This memorisation process often involves no critical study of the text. That comeslater, mostly either mediated through other commentaries on the text. At that stagethe intermediate texts like the Fath: come in, but not always. In Egypt for examplethe Fath: is not found in the present curricula, though it was taught there earlier.Regarding the Fath: being critically taught in the Yemeni rib�at: s, Sayyid iUmar binH: �amid al-Jıl�anı provides an anecdote of his father’s experience from his student-life.His teacher would take particular passages of the text and would ask critical ques-tions to the students in order to motivate them to think and research by cross-checking other texts of the school.25

In contrast to this, in Malabar, Aceh, and Java, the Minh�aj as such has not historic-ally been studied or memorized, even though there have been new attempts to learnand teach the Minh�aj. Recently in Java, there is a new trend of learning the Minh�aj

22 Shaykh Abdallah Salih Farsy, The Shaf’i Ulama of East Africa, ca. 1830-1970: A Hagiographic Account,trans, ed and annotated by Randall L Pouwels (University of Wisconsin 1989) 88–90. Abdullah Ba Kathırstudied from him between June 3–mid-August, 1897.

23 ibid 152.24 <https://www.facebook.com/MHSiyaad/videos/vb.1027489464037696/1251471718306135/?type

2&theater> accessed 07 July 2017.25 Sayyid ‘Umar bin Hamid al-Jilani, Musharakat fuqaha’ Hadramout fi khidmat al-fiqh al-shafi’I, chapter: ‘al-

madaris wa al-rawabit fi hadramout’.


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https://www.facebook.com/MHSiyaad/videos/vb.1027489464037696/1251471718306135/?type=2&theater



thoroughly by dedicating several years to the text through different pedagogic meth-ods of memorization, debates, discussions, and quizzes. This new attention to thetext arises in part from the new influx of scholars from the Middle East andSoutheast Asia that tend to adapt the Middle Eastern curriculum into the Malayworld. This reliance is clear from a report on the graduation of Minh�aj-students inYogyakarta: ‘If our teacher says Fath: al-muiın is the standard [text] of the nationalKiai, well the Minh�aj is the standard [text] of international scholars’.26 Nevertheless,even when the Minh�aj as such is not taught in South and Southeast Asia, studentswould learn two commentaries at a higher/advanced level. In the intermediate levelthey would study the Fath: . In Southeast Asia and East Africa, the Fath: is supple-mented or replaced by another widely circulated text. That is Fath: al-qarıb of Ab�uiAbdullah Shams al-Dın Muh: ammad bin Q�asim bin Muh: ammad al-Ghazzı (d.1512), a commentary on Ab�u Shuj�ai’s aforesaid work.27 This text has been a majoropponent for the Fath: for a long time and we do see many scholars across the Sh�afiiıworld engaging with it thoroughly through teaching, learning, commenting, andinterpreting, as Van den Berg notes in his preface of a French translation in the latenineteenth century.28 However, it has appealed less to the Sh�afiiıs in South Asiawhere the Fath: predominates in influence. Before starting with it some institutionsin Malabar have introduced a sort of pre-intermediate text that a student must studyafter the primary level. For that they use an abridgement of the Fath: called Khul�as: atFath: al-muiın by B�ava Musliy�ar or a simplified version entitled Fiqh al-at: f�al by Bah�ajal-Dın Muh: ammad al-Nadwı.29 For a number of reasons both these texts are used ex-clusively by two rival factions of the Muslim community in the region.

Why do the Minh�aj and the Fath: come together in the educational spectrum,while the former is assumed to be the more ‘classical’ text of the school vis-a-vis theFath: that is more ‘marginal’ intermediate text? The answer has multiple layers.Firstly, notwithstanding Minh�aj’s complexities in meanings and the necessity of acareful reading with an expert, it also is a superficial text that a non-specialist canlook through easily. Compared to Nawawı’s other texts, it is also precise and com-plete with a discussion of all major aspects of Islamic law. All these facets help anintermediate student to study a text of Sh�afiiısm without necessarily defining ‘innermeanings’ or wordings. Nawawı himself refers to the text’s target audience and itspedagogical function vis-a-vis the Muh: arrar of R�afiiı when he wrote:

26 ‘Kalau guru kami mengatakan fathul muin itu standar kiai nasional, nah minhaj itu standar ulama inter-national’ ‘Enam Tahun Bersama Minhajut Tholibin’ <http://www.almunawwir.com/enam-tahun-bersama-minhajut-tholibin/> accessed 07 July 2017.

27 The full title of Fath al-qarib is Fath al-Qarib al-Mujib fi Sharh Alfaz al-Taqrib. It is also known as al-Qawlal-Mukhtar fi Syarh Ghayah al-Ikhtishar and Sharh Ibn Qasim al-Ghazzi ‘ala Matn al-Taqrib’. There aremany hashiyas on this text, most importantly the ones by Burhan al-Din al-Birmawi, Shihab al-Din al-Qalyubi, Dawud bin Sulaiman al-Rahmani, Ibrahim al-Bayjuri and Muhammad Nawawi al-Banteni. AbuShuja’s this text also have gathered many more textual descendants apart from the line of Fath al-qarib.For a descriptive list, see: Mu

_Hammad ibn Q�asim Ghazzı, Fat

_H al-qarıb al-mujıb fı shar

_H alf�a

_z al-Taqrıb

aw al-Qawl al-mukht�ar fı shar_

H Gh�ayat al-ikhti_s�ar, ed Bass�am ‘Abd al-Wahh�ab J�abı (D�ar Ibn

_Hazm 2005)

10–15.28 Van den Berg, Fath al-Qarıb: la revelation de l’omnipresent; commentaire sur le precis de jurisprudence musul-

mane d’Abou Chodja’ par Ibn Q�asim al-Ghazzı (Brill 1894).29 Bava Musliyar, Khulasat Fath: al-muiın (SYS Book Stall 1993); Bah�aj al-Dın Muh: ammad al-Nadwı, Fiqh

al-at: fal (Sunni Publications Centre 1998).


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http://www.almunawwir.com/enam-tahun-bersama-minhajut-tholibin/

http://www.almunawwir.com/enam-tahun-bersama-minhajut-tholibin/

The prolixity of the Muh: arrar is an obstacle to it being learnt by heart, exceptperhaps by some persons who devote themselves exclusively to the study oflaw, and consequently it appeared to me to compose an abridgment of it, inlength not more than about half of the core text, but introducing, if God will,some beneficial valuables.30

The language is another important factor in the reception and usage of both theMinh�aj and the Fath: . Even though both texts are in Arabic and have partly beenaccused of ambiguity, Arab students at Yemen and Egypt could easily relate to theMinh�aj written by an Arab scholar. But the non-Arab students in East Africa, Southand Southeast Asia relate to a text written without the complexities of the Arabic ofArabs but with the Arabic of non-Arabs. This links with the criticisms raised in theearly-twentieth century by the Egyptian scholars like Rashıd Ri :d�a against the Arabicof Indian scholars, in comparison with the usual comments among the Indian,Indonesian, or Malaysian Sh�afiiı scholars on the smooth readability of the Fath: .31

Despite some groanings of Arab scholars against the Fath: , it gained easy accessamong the non-Arab Sh�afiiı followers, for whom the Minh�aj was a distant text whichcould be reached only via intermediate stopovers at commentaries, or abridgementslike the Fath: itself.

4 . L E A R N I N G I S L A M I C L A W : A N A D V A N C E D T E X TThe third text on which we focus is the Tuh: fa as part of the higher educational cur-ricula of the Sh�afiiı religious institutes. Though many other commentaries on theMinh�aj could be taught in the secondary or tertiary stages of legal education, theTuh: fa has been widely agreed among the Sh�afiiı scholars as the last text that a stu-dent of the school can study. At a higher level, the commentary of Mah: allı (Kanz al-r�aghibın, henceforth Kanz) has been taught widely.32 After learning the Kanz for twoor three years, the students can enrol into the final stage of their education in whichthe Tuh: fa is the prime textbook for law, along with the other major texts of

_Hadıth

(such as S: ah: ıh: al-Bukh�arı and S: ah: ıh: al-Muslim), and Qurj�an-exegeses (such as Tafsıral-Kashsh�af of Zamakhsharı and J�amii al-bay�an fı ta’wıl al-Qurj�an by Ab�u JaifarMuh: ammad al-

_Tabarı). The final stage of Islamic education generally lasts for two or

three years and within that duration the students and teachers could only cover par-ticular parts of the Tuh: fa, as the students also have to find time for other texts inother disciplines. They therefore make a selection of chapters to be taught. There isno standard norm for which chapters have to be covered, but what I understoodfrom my field-surveys is that most teachers usually prefer to cover the introduction,chapters on purity, and prayer. These themselves require more than a year to teach

30 Nawawı, Minh�aj al-t:�alibın wa iumdat al-muftın, ed. Muh: ammad_T�ahir Shaiban (Dar al-Minh�aj 2005) 64.

I have partly used EC Howard’s translation here, see Nawawı, Minhaj et Talibin: A Manual ofMohammadan Law according to the School of Shafii, trans EC Howard (W. Thacker and Co 1914) xi.

31 Rashıd Rid�a, ‘Mus�ab al-Hind wa-l-i�alam al-isl�amı’, (1915) 18 al-Man�ar 79–80.32 It should be noted that the religious educational centres in the Islamic world usually never followed a uni-

fied universal curriculum. Each institute, whether it is big or small, followed its own syllabus.Nevertheless, there were some attempts to standardize the curriculum in regional levels, but it never wasa huge success gaining currency among all the religious institutes.


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and learn. In exceptional cases when time allows, they would also teach chapters oncommercial and criminal laws. For the remaining chapters and sections of the text,the teacher gives a licence (ij�azat li al-tadrıs wa al-ift�aj) to the student to read, toteach, and to give legal rulings based on the text independently.33 Though the read-ing would not help the students to teach the Tuh: fa again because of time constraintsin the curriculum, this ij�aza helps them provide legal clarifications whenever situa-tions arise in their later career as religious leaders, muftis or judges.

This problem of learning and teaching the Tuh: fa partially and not entirely moti-vated some scholars to design courses exclusively to study the text. Some new institu-tions were established only for this purpose and a few old institutions built upadditional infrastructures. The course was generally for two years. In Malabar I tracedthree such initiatives and one in Banda Aceh exclusively dedicated to teach theTuh: fa.34 While the three colleges introduced the course for graduates in their usualsyllabus, one college was established only to teach this text. Later on it also startedcourses for graduation without learning the Tuh: fa in its entirety. There are also re-nowned specialists of the Tuh: fa who teach at these institutes. For example, M.T.Abdulla Musliy�ar has taught in all three institutions of Malabar at different times. Hewas invited by the respective managements with offers of a higher salary and otherprospects. Even such specialized colleges for learning the Tuh: fa never manage to fin-ish teaching the text completely. Since the usual duration of the course is two years,this motivated a few other scholars to take more years to finish the text. Under theloosened institutional and curricular structures run by an individual scholar, theTuh: fa is taught without any time limits. This was initiated by Kılana Ku~n~nabdullaMusliy�ar (d. 2000) and followed by Ku~n~nalawı Musliy�ar and Najıb MawlawıMamp�at:u. One of my informants closely associated with this study circle told methat usually their syllabus takes almost 10 years to learn the Tuh: fa completely,whereas Najıb Mawlawı claims to have taught the entire text within a year to 58 stu-dents in 2015–16.

In Malabar, they depend on the 10-volume Tuh: fa which contains two super-commentaries of Ibn Q�asim al-iIb�adı (d. 1586) and iAbd al-H: amıd al-Sharw�anı al-D�aghist�anı (d. 1884). Sayyid Jifrı Muttukk�oya, who has been teaching the Tuh: fa forthe last two decades, says that even if he tries to teach the entire 10 volumes as abatch, he only manages to finish particular chapters from each volume. He prioritizesteaching chapters that have immediate use and relevance, such as the ones on rit-uals.35 But he also teaches the chapters on slavery and jihad. I asked why he teachesthose topics even after their rulings are no more applicable in secular Indian contextswhich prohibit religious war and slavery, and he said: ‘Islam has not abolished them;it has only discouraged slavery. Furthermore, if I skip them, the students would not

33 This practice of giving ij�aza or licence has a long trajectory in Islamic educational history. See, for ex-ample, Devin J Stewart, ‘The Doctorate of Islamic Law in Mamluk Egypt and Syria’ in Joseph Lowry,Devin Stewart and Shawkat Toorawa (eds), Law and Education in Medieval Islam (E.J.W. Gibb MemorialTrust 2004) 45–90.

34 Those are: (i) Nandi Darussalam Arabic College, (ii) Yamaniyya Arabic College Kuttikkattur and (iii)Jamia Nuriyya Arabic College, Pattikkad.

35 The chapters he teaches include congregational prayer, funeral prayer, two iıd prayers, marriage, divorce,inheritance, endowments, testimonials, jihad, and abode of war.


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understand many phrasings by which the author quite often refers back and forth tothese chapters’. He always tries to teach the first volume entirely in order to familiar-ize students with the style and technical terms of the Tuh: fa. He claims that he hastaught all volumes of the Tuh: fa except the fourth and fifth.

Both in specialized and non-specialized institutes, the teacher of the Tuh: fa wouldbe its topmost teacher. Alone s/he can/would teach it, sometime with the help ofsome teaching assistants. What I found most interesting about these teachers is thatthey themselves have not studied the Tuh: fa in its entirety from an expert. That is acrucial requirement in the Islamic educational traditions: one is able to teach a textonly if s/he learns it fully from an authority, or at least s/he gets permission (ij�aza)to do so. This feature demonstrates the ‘untraditional’ modes of ‘traditional’ Islamiceducational system in terms of its style and practice, leaving aside for the moment alltheir other developments assimilating Western models of syllabus organization, an-nual and biannual exams, classroom settings, etc. Most of these teachers have studiedthe Tuh: fa partially from a specialist and they are very keen on talking about theirteachers and the teachers’ teachers—the chain of teachers (silsila or sanad) that oftengoes back to the author of the Tuh: fa himself. The Figure 1 provides such a chain ofteachers of the Tuh: fa delivered by Najıb Mawlawı for his students who completedthe entire Tuh: fa in 2015–16, and this certificate-cum-chain connects their teacher’schain to Ibn Hajar al-Haytamı via al-Malaybarı, the Fath: ’s author.

Those who have graduated from such courses are known as ‘the Haytamıs’,named after the author Ibn H: ajar al-Haytamı, and many of them hold prestigiouspositions in the higher circles of Islamic education, fuqah�a-estate and its legalist dis-courses. Such a specialized course in learning and teaching the text in its entirety is away to assert the highest legalist knowledge one can acquire through religious educa-tion and to encourage upward mobility.

5 . F R O M U N I V E R S I T I E S T O F E M A L E iU L A M �AjWhile in the primary, secondary, and higher levels of traditional Islamic educationthere was a place for the classical Sh�afiiı texts, there has also been a recent upsurge inanalysing these texts in the newly growing Islamic universities. In such universities inIndonesia, India, Malaysia and Yemen, there have been many legalistic, linguistic,comparative, literary, and religious studies based on or related to these texts. TheFath: is a favourite subject for many undergraduate and Masters-level students, aswell as works like Fath: al-qarıb.36 However, I have not come across any doctoralstudies related to any of these texts. This aspect demonstrates the manner in whichtraditional modes of religious–legalistic education and its textual apparatus finds shel-ter in the new academic environments and transforms itself to fit into the new con-tinuums. Such a transformation is more commendable in the textual longue-duree ofthese law-books as to the ways in which the educational settings and pedagogic

36 For example, see Robiatul Adawiyah, ‘Analisis Gramatika Terhadap Buku Terjemahan Fath al-Mu’in padaBab Zakat Karya Syaikh Zainuddin’ (Gelar SS, Universitas Islam Negeri Syarif Hidayatullah Jakarta,2006); Muhammad Najihun, ‘Takhrij Kitab Fath al-Mu’in: Sebuah Kajian Analisis Sanad Hadis BabWasaiat’ (Universitas Islam Negeri Syarif Hidayatullah Jakarta 2002); M Khoas Rudin Sodik, ‘KalimatEfektif dalam Buku Terjemahan Fath al-Mu’in: Studi Kasus Bab “Shalat” dan “Adzan”’ (Universitas IslamNegeri Syarif Hidayatullah Jakarta 2011).


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patterns and research methodologies changed over place and time while the textsremained the same over several centuries.

All these engagements are a sort of ‘formal’ learning of these texts, as thatfunctions within a designed curricula, institutional structures and formalities for

Figure 1. A certificate-cum-chain (sanad) of teachers of the Tuh: fa delivered by an Indianteacher for his students who completed the entire Tuh: fa in 2015–16. This sanad connectsthe student’s intellectual lineage to Ibn Hajar al-Haytamı via al-Malayb�arı.


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admissions, and graduations, or they are either run by a governmental or non-governmental organization. But there are also many ‘informal’ educational endeav-ours initiated by independent individuals to teach and study the text, without beingaffiliated to any ‘formal’ system or institutions. The mosque-gatherings and individ-ual collectives are good example in this regard. The mosque-gatherings, usually con-ducted on a special occasion, help the expert of the text to teach it for those who areinterested in Islamic law in general. It completely depends on the teacher and re-spective aspirants, who come from all ages and possess some background knowledgein Islamic law and Arabic language. The teacher has the choice to select the text, andmany fuqah�a prefer to teach the Fath: for various reasons (see Figure 2). Whether inSouth Asia or Southeast Asia, usually this happens in the month of Ramadan. But italso happens in Fridays in the early morning (after the morning-prayer), or in lateevenings (after sunset). Nevertheless, in such ‘popular’ classes the Fath: is not theonly legal text and Islamic law not the only subject of education.

On the other hand, in individual sessions with advanced graduates of Islamic legalstudies a teacher will circumambulate around a text that the students choose. Theaforementioned case of Ku~n~nalawı Musliy�ar’s Tuh: fa-classes is the best example ofthis. The students interested in learning the text approached a teacher, who is aknown as an authority on the text and Islamic law in general. Without any propercourse-structure or requirements, the aspirants join the classes and the teacherteaches it as long as there are students. In Jakarta too, Mawl�an�a Y�usuf rememberedsuch sessions of the Tuh: fa that the famous Javanese scholar H�ashim Ashiarı used toconduct two-three decades ago. Y�usuf attended all those classes. Now he teaches theFath: , along with many other mystical and theological texts, only in the mosque-sessions. He regrets that there are no students interested in learning the Tuh: fa.

Another important aspect of institutional and individual entanglements with thetexts is the role and space of women as students and teachers. While the Islamic insti-tutional structures have been so much male-centric and have rarely provided achance for female aspirants to pursue higher education, the situation has been chang-ing lately with many collective attempts of female and male religious scholars.37 Evenbefore this massive shift in the Islamic world by the end of twentieth century, therewere individual male scholars who accommodated female students or a few femalescholars who taught male students. Such female expertise was more associated withthe transmission of Prophetic traditions and spiritual knowledge, whereas Islamic lawremained inaccessible for most of them.38 In my fieldwork I have seen a few womenwho studied the texts under my focus in the mid-twentieth century, and all of themwere privileged in terms of their immediate relationship to some male Sh�afiiı juristswho were willing to teach them the Fath: . However, now with the rise of femaleiulam�aj and female pesantrens, especially in Indonesia, there are wider attempts tostudy and critically engage with the conservative views of most male iulam�aj. Someof them have brought out annotated critical editions for some controversial Sh�afiiı

37 For example, Masooda Bano and Hilary Kalmbach (eds), Women, Leadership and Mosques: Changes inContemporary Islamic Authority (Brill 2012); Saba Mahmood, Politics of Piety: The Islamic Revival and theFeminist Subject (Princeton University Press 2005).

38 Asma Sayeed, Women and the Transmission of Religious Knowledge in Islam (Cambridge University Press2013).


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texts with strong arguments against their male-chauvinistic elements and misogynis-tic statements.39 In Banda Aceh, they even study and teach the Tuh: fa and their

Figure 2. An advertisement in front of a mosque in Singapore of an Islamic law courseoffered to the public through learning the Fath: at the mosque.

39 For example, see Forum Kajian Kitab Kuning (ed) Wajah Baru Relasi Suami-Istri: Telaah Kitab ‘Uqudal-Lujjayn (LKiS 2001); Pieternella van Doorn-Harder, Women Shaping Islam: Indonesian Women Readingthe Qurj�an (University of Illinois Press 2006) 190–91, passim.


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study-circle is very unique not only in the archipelago but throughout the Sh�afiiıMuslim world. Through learning these texts and reinterpreting several male chauvin-istic statements of these classical texts, the female iulam�aj tries to emphasize the gen-der equality of Islam.

6 . B E Y O N D T H E W A L L SOutside the educational institutional frameworks, the Minh�aj, Fath: , and Tuh: fa playimportant roles in the Sh�afiiı discursive practices of both scholars and laypersons.The usages of the texts differ depending on the individuals, contexts and customsvarying from Sharıia courts, fatwas, sectarian debates, and popular preaching. I willanalyse each of these in turn.

In the Sharıia courts, clearly established and run in the Muslim-majority countrieslike Yemen, Egypt and Indonesia (exclusively at the province of Aceh), the lawyersand judges depend on Islamic legal texts on a number of different levels and for dif-ferent purposes.40 The Fath: , Tuh: fa and Minh�aj in particular have been used in theSharıia courts of Southeast and South Asia and East Africa since the late nineteenthcentury. In Southeast Asia, the Dutch colonial government officially recognized reli-gious courts (priestraad) in 1882, but before that while the discussions about bring-ing such courts under the government control were going on, Sayyid iUthm�an wrotea text in which he clearly advised judges and scholars to use these texts for their rul-ings based on Sh�afiiı law. Following the predominant views of South and SoutheastAsian and Arabian scholars of the school, he prioritized the opinions of Nawawı overthe ones of R�afiiı and further hierarchized the works of Nawawı in which the Minh�ajhas been ranked highly, just after the Raw :da. He also asked to prioritize the opinionsof Ibn H: ajar and his Tuh: fa over Ramlı and his Nih�aya. Most importantly, he includeshis own work into the chain of dependable works of the school, which indicates anattempt from his side to make his work as the compendium for judges in the religiouscourts to be recognized by the government.41 Within a few years, the Minh�aj wastranslated into French and English, and the Tuh: fa was translated into Javanese andDutch by a number of different Dutch and English orientalists and colonial judgesand administrators. These translations were often used in the religious courts of theIndian Ocean littoral from East Africa to Southeast Asia as well as in the ‘secular’ co-lonial courts in cases in which a Muslim litigant was involved.42

In postcolonial South and Southeast Asia and Middle East, the Sharıia courtsfaced different trajectories.43 While some became informal or stopped completely in

40 For a comparative analysis of the Sharıia courts in the Muslim-majority countries, see Jan Michiel Otto(ed), Sharia Incorporated: A Comparative Overview of the Legal Systems of Twelve Muslim Countries in Pastand Present (Leiden University Press 2010).

41 ‘Uthm�an ibn ‘Abd All�ah ibn ‘Aqıl ibn Ya_

Hya ‘AlawıAlKit�ab al-qaw�anın al-shar‘ıyah li-ahl al-maj�alis al-

_Hukmıyah wa-al-ift�a’ıyah: artinya ini kitab segala aturan hukum syari bagi ahli ahli majelis hukm syari danmajelis fatwa syari yaitu yang dekat Rad Agama (Maktaba ‘Araf�at 1881) 14–16; for the chart, see 6.

42 Mahmood Kooria, ‘Two “Cultural Translators” of Islamic Law and German East Africa’ (2016)24 Rechtsgeschichte-Legal History: Journal of the Max Planck Institute for European Legal History190–202.

43 Aharon Layish, ‘Islamic Law in the Modern World: Nationalization, Islamization, Reinstatement’ (2014)21 Islamic Law and Society 276–307; Rudolph Peters, ‘From Jurists’ Law to Statute Law or WhatHappens When the Shari’a is Codified’ (2002) 7 Mediterranean Politics 82–95; Wael B Hallaq, Sharı’a:


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most parts of Indonesia, its Aceh province and in Brunei Darussalam those acquirednew life and functions. Even in some other states of Indonesia and Malaysia theSharıia-influenced bylaws were introduced or continue to be operative. As allthese regions are predominantly Sh�afiiı in their adherence to Islamic law, the primetexts they use in these contexts are the ones like the Fath: , its commentaries, andoccasionally the Tuh: fa, but hardly ever the Minh�aj. The Sharıia was exclusivelyreduced to the family laws under the colonial regimes of the British, the Dutch andthe French in various Islamic regions and several Muslim countries followed this pat-tern in the postcolonial world too. Marriage, divorce, inheritance, and endowmentsbecame largely an exclusive realm for Islamic law in various countries of the IndianOcean littoral. Particularly among the Sh�afiiı Muslim countries like Malaysia (follow-ing the Muhammadan Marriage Ordinance No. 5 of 1880 and various acts and enact-ments leading to the Undang-Undang Keluarga Islam or ‘the Islamic Family Act’ of1983) and Indonesia (Undang-Undang No. 22 Tahun 1946 Tentang PentjatatanNikah, Talak dan Rujuk or ‘Act No. 22 of 1946 on the Registration of Marriage,Divorce and Reconciliation’ and similar acts in 1954 and 1974) the Sh�afiiı version ofIslamic law continued to be relevant and functional in the everyday lives of Muslims.During and in ‘the Compilation of Islamic Law in Indonesia’ (Kompilasi HukumIslam di Indonesia) in 1991 the use of Sh�afiiı laws was further enhanced through in-tensive discussions and extractions among Muslim scholars, lawyers, and judges. Thetexts under our focus were some of the main sources in most of these enactments,codifications, and their consequent uses in the religious courts. In the Indonesian re-ligious courts, Fath: ’s one commentary Ii�anat al-t:�alibın by Ab�u Bakr bin Muh: ammadShat:�a al-Dimy�at: ı aka Sayyid Bakrı (1850–1893) is found as a frequent reference bythe judges.44 Another commentary on it, Tarshıh: al-mustafıdın by iAlawı bin Ah: madbin iAbd al-Rah: m�an al-Saqq�af (1839–1916), and Minh�aj’s one abridgement titledManhaj al-t: ull�ab by Zakariy�a al-Ans:�arı (d. 1520), are also the other most used Sh�afiiıtexts from the same textual genealogy under our focus.

In Sh�afiiı clusters where Muslims are a demographic minority, such as in India,Sri Lanka, Singapore, and the Philippines, these texts have been playing roles in thejurisdictions of the secular courts which considered Sharıia as a valid source of law torule on issues related to Muslims. Such countries though established or recognized aseparate court based on Sharıia (especially in Singapore and the Philippines).45

Occasionally the secular courts too sought clarifications from the Muslim jurists whosheltered under texts like the Fath: . The secular states and their judiciaries have

Theory, Practice, Transformations (Cambridge University Press 2009); R Michael Feener, Shari’a andSocial Engineering: The Implementation of Islamic Law in Contemporary Aceh, Indonesia (Oxford UniversityPress 2013).

44 Euis Nurlaelawati, Modernization Tradition and Identity: The Kompilasi Hukum Islam and Legal Practice inthe Indonesian Religious Courts (Amsterdam University Press 2010) 139–42.

45 On the Sharıia courts in Singapore and the Philippines and Q�a :dı courts in Sri Lanka, see Noor AishaAbdul Rahman, ‘Traditionalism and its Impact on the Administration of the Muslim Law: the Case of theSyariah Court of Singapore’ (2004) 5(3) Inter Asia Cultural Studies 415–32; Isabelita Solamo-Antonio,‘The Philippine Shari’a Courts and the Code of Muslim Personal Laws’ in Adam Possamai,James T Richardson and Bryan S Turner (eds), The Sociology of Shari’a: Case Studies from Around theWorld (Springer 2015) 83–101; Saleem Marsoof, The Quazi Court System in Sri Lanka and its Impact onMuslim Women (Muslim Women’s Research and Action Forum 2011).


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validated those methods; in fact, they have been in effect since the colonial regimeswhich introduced different Sharıia acts for their colonial Muslim subjects. Ever since,these countries have been introducing separate family laws for their Muslim minor-ities (in Sri Lanka, the Muslim Marriages and Divorce Act of 1951; in India, theSpecial Marriage Act of 1954, following Muslim Personal Law (Shariat) ApplicationAct of 1937 and Dissolution of Muslim Marriage Act of 1939; in Singapore, theAdministration of Muslim Law Act of 1966; in the Philippines, the ‘Code of MuslimPersonal Laws of the Philippines’ following the Presidential Decree No. 1083 in1977), and in several related debates and judicial proceedings the premodern Islamiclegal texts are some of the most crucial references.46

Beyond the systematic courts of a secular state or Sharıia, these texts play crucialroles in the ‘individual courts’ of muftis, a usual hub for the Muslim community tosolve legal disputes and seek legal clarifications and opinions. Fatwas, as those rulingsare known, delivered by the mufti still appeal to a pious Muslim mass in theireveryday lives as long as they seek it. The fatwas are pronounced only whensomeone asks for it, yet the questioner is not bound to follow that ruling. In mostoccasions when trivial legal issues arise, the Sh�afiiı scholars in the Indian Oceanrims of South and Southeast Asia depend on intermediate texts like the Fath: andthe Kanz. But when a serious or complicated issue comes up, they usually turn tothe Tuh: fa for solutions. A saying that exists among the Malabari Sh�afiiı scholars isthat ‘a scholar can find answers in the Tuh: fa to any problems whether it is old ornew’. Although this is an overstatement, a specialist of the text, M.T. AbdullaMusliy�ar, told me that if one reads the text more carefully in between its lines andphrases, there would be answers to any modern or post-modern issues. This beliefis underpinned with a saying:

It is a text that has what it has, amusement of meanings.If one cannot discern what it has, it is like dog’s urine in his mouth.47

In other words, only those who are capable of reading and analysing the text properlycan find the right answers; otherwise s/he will be mistaken and would misguideothers. Such popular sayings among the specialists of the text demonstrate their urgeto assert excellence within the fuqah�a and the Sh�afiiı clusters. This claim of idiosyn-crasy is also a tool to establish authority within the cluster to read the text and com-prehend its hermeneutics appropriate to the contexts as much as to the school’stradition.

Ceru�s�s�eri Zayn al-Dın Musliy�ar (d. 2016), who taught the Fath: , the Kanz and theTuh: fa for more than half a century at various traditional and ‘modern’ educationalcentres and was renowned for the most authentic legal clarifications in Malabar, toldme that he depended on the Tuh: fa whenever a complicated issue came up. Out ofhis experience of giving fatwas for the past five decades, he strongly believed that at

46 For the original texts of these acts and codes, see <https://scholarblogs.emory.edu/islamic-family-law/home/research/legal-profiles/> accessed 07 July 2017.

47 Interview with M.T. Abdulla Musliy�ar on 28 April 2014. He says that he heard this statement in Arabic(kit�ab fıhi m�a fıhi, lat:�a’if ma’�anıhi, faman lam yadrı m�a fıhi ka bawl al-kalb fı fıhi) from his teacherK�ot: t: umala Ustad.


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https://scholarblogs.emory.edu/islamic-family-law/home/research/legal-profiles/

https://scholarblogs.emory.edu/islamic-family-law/home/research/legal-profiles/

the end of the day one will find an answer in the Tuh: fa to any strange problems. Hisfatwas, though widely respected in the highly discursive and argumentative Sunnisphere of Kerala, as discussed below, have put him occasionally into trouble. Hebelieved that whatever answer he had given was at the time undoubtedly correct, andit is because his opponents are incapable of reading texts like the Tuh: fa or misreadthem that they dragged him into trouble.

In the first and last few pages of each volume of a manuscript of the Tuh: fa kept atC�aliya

_m Library, a scholar has noted down the fatwas he has delivered referring to

the text. It is a copy used by Ah: mad K�oya Sh�aliy�atı (d. 1954), who was a well-knownlaw-giver in the first half of the twentieth century and has worked as a mufti underthe Hyderabadi sultan iUthm�an Ali Kh�an, �Asaf J�ah VII (r. 1911-1948; titular Ni

_z�am

until 1967). In his notes, he cites the questions from litigants, and the answers fromthe Tuh: fa along with the details of the chapter or page-number. Some such side-notes were later publicized by him as small pamphlets or ris�alas in which the Tuh: fawas the main source of reference. The abundance of such writings in the marginsand first and last pages indicate how effectively the Tuh: fa was utilized as a major ref-erence in law-giving. This manuscript represents a wider pattern of similar practicesthat existed during the circulations of these manuscripts before and after the popular-isation of printing among the Muslims.

In legal debates among the Sh�afiiıs the three texts also have a very significantplace. If one cites the Tuh: fa, for example, on a debating issue, then it is consideredto be the final statement on it. Thus, reading a sentence, sometimes even a phrase orword, from the Tuh: fa in a particular debate, and analysing its meaning and connota-tions in relation to the matter at hand prove highly challenging for both debaters andaudience. The best example in this regard can be taken from Malabar when twoSunnı-Sh�afiiı groups, organizationally divided as the APs and EKs,48 vigorouslydebated in 2002–03 over the issue of the subject in the wording (

_sıgha) of divorce.

The issue arose after the above-mentioned Ceru�s�s�eri Zayn al-Dın Musliy�ar gave aruling to a litigant that the divorce would not occur if a person divorced his wifewithout mentioning the subject. Ceru�s�s�eri was the General Secretary of the EK-group and its executive council approved his ruling, whereas the opposite group chal-lenged the fatwa by saying that the divorce had happened and Ceru�s�s�eri was mis-taken. Consequently a huge debate erupted between both factions and each groupadvocated their opinions using all kinds of media (print, audio, and visual). In thisdebate, the Tuh: fa was a major text that the E.K. group wanted to rely on. As a spe-cialist of the Tuh: fa, M.T. Abdulla Musliy�ar came to the forefront in analysing themeanings of Ibn H: ajar’s stand on whether or not the subject should be mentioned ina formula (

_sıgha) of divorce. He quoted a couple of sentences from the Tuh: fa, trans-

lated phrase by phrase, and analysed it in relation to the question at hand about thesubject. He explained this in an open debate between two groups organized atMalappuram, and later on published his analysis along with other evidences as a

48 They are named after the initials of leading scholars of each group: The APs are thus named after APAb�u Bakr Musliy�ar, whereas EKs are after EK Ab�u Bakr Musliy�ar. Both of them were the leading mem-bers of Samasta Kerala Jamiiyyat al-iUlam�aj, a Sunnı-Sh�afiiı organization established in 1926, until theywere divided in 1989 over some political, organizational and legalistic issues.


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book.49 After a decade, he reflected on the debate: ‘I had great difficulties in helpingthe AP-group understand the wordings of the Tuh: fa in its eighth volume, the four-teenth page’.

Such text-based debates are very vehement among the Malabari Muslims, as else-where in the Islamic world. Since the majority of Malabari Muslims follow Sh�afiiısmas their school, the legalistic debates that happened decades ago had a deep impactin dividing the community into an ‘organizational factionalism’, and they remain asopponent groups within the frameworks of Sh�afiiısm, constantly generating oppositeviewpoints. The classical example for this ‘dividing power of a premodern text’ is thedebate that happened in the late 1960s on the permissibility of using a microphonefor rituals like the call to prayer and Friday sermons. The debate deepened to the ex-tent that the chairperson, who stood against allowing it, quit the Sunnı-Sh�afiiı organ-ization and formed another group, which now continues to function on its own andoccasionally comes up with many counterarguments to the legal opinions taken bytheir old mother organization. While this group is the third opposition to the firstone, the second group left the organization in the late 1980s for a number of reasonsin which again several juridical disagreements like the permissibility of translatingQuran into vernacular language, cooperation of the fuqah�a with the Muslim politicaland reformist groups, etc. had indisputable roles to play. At all the debates, which stillcontinue on occasions on different topics and concerns, ardent enemies of all thethree factions use the Fath: , the Tuh: fa and their different super-commentaries asstarting points, as well as other texts of the school. What is interesting is that they allagree for the Tuh: fa to be the source-text for their debates, even though they differon interpreting its philological compositions, hermeneutics and contexts. In almost acentury-long debate regarding the obligation of zak�at for currency-bills, a passagefrom Tuh: fa’s commentary by iAbd al-H: amıd al-Sharw�anı al-D�aghist�anı (d. 1884) hasbeen so crucial in the discourses for decades, as well as a sentence from the Fath:over the virtuousness of collective prayer (k�ut: t:upr�arthana) after the obligatory pray-ers (s: al�at).50 In the last case, the debate was not among Sh�afiiıs themselves, but theyjoined hands together against Salafı scholars who opposed this practice.

The textual debates, with all sorts of physical, intellectual, scholarly permutationsdividing Sh�afiiıs into rival groups, represent only one part of the usage of these textsin the discursive tradition of the school. In a less-vehement scenario of the dis-courses, the texts are invoked also by the same fuqah�a in their scholarly and popularpreaching. Articles in their mouthpiece-journals, newspapers, magazines, books, andmass conferences are significant sites for such articulations. In the popular writingspublished in community journals, magazines and newspapers the texts also appear asa common reference that the writers frequently quote on different legalistic, ritualis-tic problems. After the massive introduction of print among Muslim communities,

49 MT Abdulla Musliyar, Twalaq Samvadam: Satyavum Mithyayum (Shamsul Ulama Smaraka Fiqh Centreundated) 38–42.

50 Sharw�anı al-D�aghist�anı’s commentary on Ibn H: ajar al-Haytamı, Tuh: fat al-muh: t�aj (D�ar al-Kutub al-iIlmıyya 1996), 4: 238. The controversial sentence of the Fath: is: ‘amm�a al-im�am i

�d�a taraka al-qiy�am al-

la�dı huwa afdal jaiala yamınuh il�a al-majm�umın’. On the long histories and nuances of these debates, see

A Najıb Mawlawı, ‘Irupat�a_

m N�utt�a_nt: ile �sraddh�eya Viv�ada _n _na

_l’ Bulbul Da�sav�ars: ikappatippu (Bulbul

Magazine 2001) 180–256.


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the invocation of legal textual traditions into different contexts has become a serioussocio-religious phenomenon. Printing has produced an enormous amount of socio-cultural and economic products entangled with the legalistic questions as much asethical, theological, and spiritualistic concerns.51 A deeper analysis of the usage ofthe texts I have selected in the stock of Sh�afiiı publications from these groups as wellas at the massive annual gatherings would require more space and time. Suffice it tosay now that the citation of the Fath: and the Tuh: fa and their several commentariesis one of their several creative ways to assert scholarly and jurisprudential authorityon the basis of the premodern texts, and to substantiate their correctness against theopponents who spread the ‘wrong’ versions of the school and its texts.

Apart from these scholarly undertakings, the texts are also one of the main sour-ces for popular preachers and storytellers to legitimize their narratives, show theirknowledge of Islamic legal traditions, grab the attention of the masses for the highculture of Islamic law, and educate them about its complexities. In some of the man-uals prepared for popular preachers we see quotes from the Fath: , its commentarieslike the Ii�ana, but hardly any from the Tuh: fa or the Minh�aj. But other intermediateSh�afiiı texts have been quoted. The conflicts between popular preachers and special-ist scholars, as explained by Jonathan Berkey in the context of medieval Cairo, arevisible in these Sh�afiiı communities too.52 This is seen especially on the occasionswhen popular interpretations are made by such speakers in public spheres for par-ticular passages of the texts. The scholars accuse them of ignorance in and unfamili-arity with the nuances of Islamic legal theories and applications as mentioned inthese premodern texts.

Various legal writings of Sh�afiiıs in a global spectrum also show how the texts findtheir ways into trans-communal and transnational discourses too. For example, theOxford-based Sh�afiiı scholar Shaykh Afifi al-Akiti’s noted fatwa against the terroristattacks in the name of Islam titled Defending the Transgressed, written following theLondon bombings of 2005, uses Fath: ’s commentary Ii�ana to validate his arguments.In his other writings too, the same text, and the Fath: itself, appears as his primesource.

7 . C O N C L U S I O NThe journeys of Sh�afiiı legal texts such as the Minh�aj, Tuh: fa, and Fath: demonstratehow the Muslim community make use of a rich repository of premodern texts intheir approaches to Islam and its laws. Standing within the frameworks of Sharıia-related jurisprudential practices they prioritize these texts produced over centuries oreven a millennium after the advent of Islam over the foundational texts of the schoolfrom the ninth century. The foundational texts of Islam or Islamic legal thoughtshardly come into their everyday processes of making out the meaning of Islam andits law. Instead, texts like the Tuh: fa and Fath: written in the sixteenth century andtheir commentaries from the nineteenth century (Sharw�anı’s commentary on the

51 Brinkley Messick, ‘Madhhab and Modernities’ in Peri Bearman, Rudolph Peters and Frank Vogel (eds),The Islamic School of Law: Evolution, Devolution, and Progress (Harvard University Press 2005) 163–69.

52 Jonathan Berkey, Popular Preaching and Religious Authority in the Medieval Islamic Near East (Universityof Washington Press 2001).


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Tuh: fa and the two commentaries on the Fath: —the Ii�ana and the Tarshıh: al-mustafıdın—all mentioned above were written in the late nineteenth century) appealmore to Islamic lawyers, judges, scholars, muftis, and debaters. In other words, thepast that matters to the Muslims in Islamic legal tradition is not that of the seventh-century Arabia, as the Islamophobic, Islamicist, and anti-Islamic critiques want us tobelieve. Rather it is chronologically and geographically diverse and stretches fromthirteenth-century Damascus, sixteenth-century Mecca and Cairo to sixteenth-century Malabar and nineteenth century Java and Mecca. These texts and theirauthors have significantly contributed to change the ways in which Islamic lawsshould be practiced in different contexts. Many commentaries and super-commentaries disagreed with the previous corpora and recontextualized the juridicalrequirements to befit the new concerns and this process continues well up until pre-sent times.

All these texts belong to the long textual longue-duree of Sh�afiiısm in which thereare many more similar texts, and together they form a deep reservoir for the Muslimcommunity. They govern the discourses, debates, law-giving, rituals, and practices forthem. A proper understanding of this repository would provide a better idea on howthe Sharıia and its usage matter to the Muslims and how they relate with Sharıia inpresent times. These texts are taught and learned in religious educational centresfrom the shores of the eastern Mediterranean to the eastern Indian Ocean formingshared vocabularies for the Sh�afiiı legal cosmopolis. Intensifications of such educa-tional institutions since the early twentieth century and utilisation of printing tech-nology for massive reproduction of premodern Islamic texts all have made thistextual repository more relevant and powerful in the Islamic world, compared to theprevious centuries. Furthermore, the frequent use of these texts beyond the institu-tional walls in the public intra-sectarian and inter-sectarian debates, law-giving, legalcodes and acts clearly indicate how this commentary tradition of Islamic law contin-ues to appeal to an even larger audience in the Muslim world.

Their entanglements with this textual tradition also demonstrate the creative waysthrough which the followers of Islam endeavour to cater to the changing times andplaces without moving away from the perceived and received prescriptions. Througha constant commentarial process inside and outside the classrooms, private or publicdebates, mutual agreements or internal disagreements, they interpret the texts inorder to engage with their present concerns and contexts, whether those are of mod-ernity, minority-status, or other economic and social demands. That processual com-mentarial act helps them revitalize the textual repository as much as the repositoryrejuvenates them. On the one hand, the Islamophobic critiques mentioned at the be-ginning of this chapter are inattentive to or unaware of this constant hermeneuticalengagement that most Muslims grapple on an everyday basis. On the other hand, theabove discussion explicates how the contemporary engagements with the textualtradition by diverse Muslims such as the female iulam�aj question the very founda-tional notions associated with Islamic authority and orthodoxy in the meaning-making processes of their religion and its rulings. Such manifold critical furtheranceof the Islamic past in the present contexts by ‘unorthodox’ groups stands in contrastto what Talal Asad had assumed about the Islamic orthodoxy in his idea of the dis-cursive tradition, as much as it represents a continuum between premodern and


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modern hermeneutical practices of Muslims that Shahab Ahmed conveniently over-looks within his persuasive contradictory framework of Islam.

A deep reservoir of legal texts is thus very important for Muslim learned classes aswell as the laity in their everyday sustenance of religion and its law. This store of pre-modern texts is similar to any other historical archive of today’s world. The past andits material are useful for any society to understand from where and how it arose anddeveloped, and to appreciate where it is heading in future. So also the Islamic legalreservoir stands as a meaningful corpus for the Muslim community today. In a simi-lar vein to professional historians making use of archives scientifically, the Muslimjurists too utilize their legal-textual repository in the scientific ways that traditionalepistemology demands and allows. Their discourses and debates conducted insideand outside educational institutions cater for the religious piety of a constant audi-ence in the community. The mosques, madrasas, markets, and mass media makerivulets from this premodern reservoir in which ideas and texts flow smoothly to thecontemporary landscapes that have been longing for hydration. An ethno-historicalapproach with an attention to textual sources and resources of the Muslims help usunderstand the concerns of the community, instead of superimposing judgmentsupon their legal and theological praxis.


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uses and abuses of the past: an ethno-history of islamic

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